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Walter A. Tormasi, Individually and On Behalf of Advanced Data v. George E. Hayman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 20, 2011

WALTER A. TORMASI, INDIVIDUALLY AND ON BEHALF OF ADVANCED DATA SOLUTIONS CORPORATION AS ITS REPRESENTATIVE AD PROSEQUENDAM, PLAINTIFF-APPELLANT,
v.
GEORGE E. HAYMAN, DEPARTMENT OF CORRECTIONS COMMISSIONER, JAMES BARBO, DEPARTMENT OF CORRECTIONS DIRECTOR OF OPERATIONS, MICHELLE RICCI, NEW JERSEY STATE PRISON ADMINISTRATOR, JEFFREY BELL, NEW JERSEY STATE PRISON ASSOCIATE ADMINISTRATOR, JAMES DRUMM, NEW JERSEY STATE PRISON ASSOCIATE ADMINISTRATOR, DONALD MEE, JR., NEW JERSEY STATE PRISON ASSOCIATE ADMINISTRATOR, CHARLES WARREN, NEW JERSEY STATE PRISON ASSOCIATE ADMINISTRATOR, DEREK BUTLER, SPECIAL INVESTIGATIONS DIVISION, INVESTIGATOR, RALPH DOLCE, SPECIAL INVESTIGATIONS DIVISION INVESTIGATOR, HARRISON (FIRST NAME UNKNOWN) SPECIAL INVESTIGATIONS DIVISION INVESTIGATOR, WILLIAM MAGINNIS, SPECIAL INVESTIGATIONS DIVISION INVESTIGATOR, VICTOR SIERRA, SPECIAL INVESTIGATIONS DIVISION INVESTIGATOR, AND VINCENT WOJCIECHOWICZ, SPECIAL INVESTIGATIONS DIVISION INVESTIGATOR, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1846-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 21, 2011

Before Judges Carchman and Parrillo.

Plaintiff Walter A. Tormasi, a prisoner at Trenton State Prison, individually and on behalf of Advanced Data Solutions Corporation, appeals from July 9, 2010 order of the Law Division dismissing his complaint. Because of procedural confusion engendered by an oversight by the Superior Court Clerk's office, plaintiff's opposition to the State's*fn1 motion to dismiss was not presented to the motion judge. We conclude that the matter should be remanded to the Law Division, so that the State's motion together with plaintiff's opposition may be considered on the merits.

These are the facts adduced from the record. Plaintiff originally filed a complaint on December 1, 2008 in the United States District Court of New Jersey alleging various civil rights claims under 42 U.S.C.A. § 1983 and an inverse-condemnation claim. He alleged in his federal complaint that the Department of Corrections (DOC) and several of its employees unconstitutionally took property from his prison cell on March 3, 2007. Thereafter, plaintiff's inverse-condemnation claim was dismissed by the district court because the district court refused to exercise jurisdiction.

Subsequently, on August 21, 2009, plaintiff filed an identical complaint in the Superior Court of New Jersey. More specifically, plaintiff alleged in his complaint that the DOC and its employees took the following documents and records belonging to plaintiff: (1) records of plaintiff's intellectual property holding company, Advanced Data Solutions Corporation (ADS); (2) records of United States Patent No. 7,324,301, which was assigned to ADS and which plaintiff owned through his equity in ADS; and (3) an unfiled provisional patent application titled "Geometrical Optical Apparatus Featuring Antiglare Properties."

On December 24, 2009, the State moved to dismiss plaintiff's complaint alleging that plaintiff's complaint was filed beyond the applicable two-year statute of limitations. Plaintiff filed his opposition papers asserting that his claim was filed within the statute of limitations and in accordance with federal tolling provisions. The motion was originally returnable on January 22, 2010. However, as the parties realized at a later time, the motion was inadvertently removed from the January 22 motion calendar and was not rescheduled for a new return date. In addition, the clerk's office had misplaced the State's motion papers. As a result, the State re-filed its motion papers and notified plaintiff of this scheduling issue as well. However, plaintiff understood defendants' letter to "merely resolve [the] scheduling issues" and did not realize that plaintiff was required to re-submit the opposition papers he had previously filed.

The motion was scheduled, without appearances by the parties, and an order was issued an order granting the State's motion to dismiss. The order noted that the State's motion was "unopposed."*fn2 This appeal followed.

Plaintiff argues that the motion judge erred by deciding defendants' motion to dismiss without considering plaintiff's opposition papers. The State argues that plaintiff failed to file opposition papers to the re-filing of the defendants' motion, and the motion was properly considered as unopposed.

On a motion to dismiss, "all parties shall be given reasonable opportunity to present all material pertinent to such a motion." R. 4:6-2. More specifically, responses to such motions "must be filed and served not later than ten days before the return date of the motion . . . ." Shulas v. Estabrook, 385 N.J. Super. 91, 94 (App. Div. 2006). While "[n]o other papers may be filed without leave of court," Rule 4:46-1, "a party may seek permission to file [opposition papers] . . . on short notice." Shulas, supra, 385 N.J. Super. at 94 n.1. Moreover, "decisions should be made where possible on the merits." Tyler v. N.J. Auto. Full Ins. Underwriting Ass'n, 228 N.J. Super. 463, 468 (App. Div. 1988). "It is a mistaken exercise of judgment to close the courtroom doors to a litigant whose opposition papers are late but are in the court's hands before the return day for a motion which determines the meritorious outcome of a consequential lawsuit." Ibid. In addition, "[l]ate filings of motion papers can be met with a variety of judicial responses afforded by existing court rules. Among them are sanctions designed to discourage late filings without determining the outcome of a case." Ibid. (citing Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., Inc., 206 N.J. Super. 405, 407 (App. Div. 1986)).

Here, the motion judge presumably did not have the benefit of plaintiff's earlier opposition papers and as such, considered the motion unopposed. The State's earlier motion to dismiss was first filed on December 24, 2009 with a return date of January 22, 2010. Subsequently, on January 15, 2010, plaintiff filed his opposition to defendants' motion and served those on defendants on January 26, 2010.

The failure to docket was not caused by the parties but by the inadvertence of clerk's office. The earlier motion could have been relisted (assuming the papers were found) or re-filed as was the case here.

The procedural difficulties attendant here should not be visited on plaintiff. His failure to properly re-file his opposition should not be a basis for dismissal of his action on the merits.

Considering the totality of the circumstances presented here, we conclude that the proper course of action is to remand to the Law Division for consideration of the merits of the State's motion and plaintiff's opposition.

Because the merits will be considered anew, we decline to address the merits of the State's argument regarding the statute of limitations and the interpretation of the tolling provisions of 28 U.S.C.A. § 1367(d).

Reverse and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


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